Citation Nr: 0626241
Decision Date: 08/23/06 Archive Date: 08/31/06
DOCKET NO. 04-23 644 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Entitlement to separate 10 percent disability evaluations for
each ear for service-connected tinnitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Palmer, Associate Counsel
INTRODUCTION
The veteran had active service from June 1967 to June 1969.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an April 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Paul, Minnesota.
FINDING OF FACT
The veteran's service-connected tinnitus is assigned a single
10 percent disability rating, which is the maximum rating
authorized under Diagnostic Code 6260.
CONCLUSION OF LAW
There is no legal basis for the assignment of a schedular
evaluation higher than 10 percent for the veteran's service-
connected tinnitus. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R.
§ 4.87, Diagnostic Code 6260 (prior and subsequent to June
13, 2003); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir.
2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. The Veterans Claims Assistance Act of 2000 (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA), describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). The U.S.
Court of Appeals for Veterans Claims has held that the
statutory and regulatory provisions pertaining to VA's duty
to notify and to assist do not apply to a claim if resolution
of that claim is based on statutory interpretation, rather
than consideration of the factual evidence. Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001).
In the instant case, the facts are not in dispute.
Resolution of the veteran's appeal is dependent on
interpretation of the regulations pertaining to the
assignment of disability ratings for tinnitus. As will be
shown below, the Board finds that the veteran is already
receiving the maximum disability rating available for
tinnitus under the applicable rating criteria. Furthermore,
regardless of whether the veteran's tinnitus is perceived as
unilateral or bilateral, the outcome of this appeal does not
change.
Therefore, because no reasonable possibility exists that
would aid in substantiating this claim, any deficiencies of
VCAA notice or assistance are rendered moot. See 38 U.S.C.A.
§ 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001)
(compliance with the VCAA is not required if no reasonable
possibility exists that any notice or assistance would aid
the appellant in substantiating the claim).
II. Increased Evaluation for Tinnitus
The Board notes that the veteran's representative wrote in a
March 2003 statement that the veteran was entitled to
separate 10 percent disability ratings for each ear for his
service-connected tinnitus.
Tinnitus is evaluated under Diagnostic Code 6260, which was
revised effective June 13, 2003, to clarify existing VA
practice that only a single 10 percent evaluation is assigned
for tinnitus, whether the sound is perceived as being in one
ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic
Code 6260, note 2 (2005).
In Smith v. Nicholson, 19 Vet. App. 63 (2005), the U. S.
Court of Appeals for Veterans Claims (Court or Veterans
Court) reversed a Board decision that found that, under pre-
June 2003 regulations, no more than a single 10-percent
rating could be provided for tinnitus, whether perceived as
bilateral or unilateral. The Court held that pre-1999 and
pre-June 13, 2003, versions of Diagnostic Code 6260 required
that VA assign dual 10-percent ratings for "bilateral"
tinnitus where it was perceived as affecting both ears.
VA appealed the Court's decision in Smith to the United
States Court of Appeals for the Federal Circuit (Federal
Circuit). To avoid burdens on the adjudication system,
delays in the adjudication of other claims, and unnecessary
expenditure of resources based on court precedent that may
ultimately be overturned on appeal, the Secretary imposed a
stay at the Board on the adjudication of tinnitus claims
affected by Smith. The specific claims affected by the stay
essentially included all claims in which a claim for
compensation for tinnitus was filed prior to June 13, 2003,
and a disability rating for tinnitus of greater than 10
percent was sought.
Recently, the Federal Circuit reversed the Veterans Court's
decision in Smith, and affirmed VA's long-standing
interpretation of Diagnostic Code 6260 as authorizing only a
single 10-percent rating for tinnitus, whether perceived as
unilateral or bilateral. Smith v. Nicholson, No. 05-7168
(Fed. Cir. June 19, 2006). Citing Supreme Court precedent,
the Federal Circuit explained that an agency's interpretation
of its own regulations was entitled to substantial deference
by the courts as long as that interpretation was not plainly
erroneous or inconsistent with the regulations. Id, slip op.
at 9-10. Finding that there was a lack of evidence in the
record suggesting that VA's interpretation of Diagnostic Code
6260 was plainly erroneous or inconsistent with the
regulations, the Federal Circuit concluded that the Court
erred in not deferring to VA's interpretation.
As a consequence of that holding, on July 10, 2006, the
Secretary rescinded the stay that had been imposed on all
claims affected by Smith, and directed the Board to resume
adjudication of the previously stayed claims consistent with
VA's longstanding interpretation that a single 10-percent
disability rating is the maximum rating available under
Diagnostic Code 6260, regardless of whether the tinnitus is
perceived as unilateral or bilateral.
In view of the foregoing, the Board concludes that the
version of Diagnostic Code 6260 in effect prior to June 2003
precludes an evaluation in excess of a single 10-percent for
tinnitus. Therefore, the veteran's claim for separate 10
percent ratings for each ear for his service-connected
tinnitus must be denied under both the new and old versions
of the regulation. As the disposition of this claim is based
on the law, and not the facts of the case, the claim must be
denied based on a lack of entitlement under the law. Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994).
ORDER
Entitlement to separate 10 percent disability evaluations for
each ear for service-connected tinnitus is denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs